What The Delhi HC Held On Recording of Statement Under The POCSO Act (Read Judgement)

Bar and Bench (www.barandbench.
com)
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*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 27th July, 2018

Date of decision : 4th August , 2018
+ CRL.REF.No.2/2016
COURT ON ITS OWN MOTION ..... Petitioner

Through: Mr. Dayan Krishanan, Sr.
Adv. and Mr. Trideep Pais,
Adv. (Amici Curiae) with
Ms. Aakashi Lodha, Mr.
Sanjeevi Seshadri and Mr.
Pranav Jain, Ms. Manvi
Priya and Ms. Vrinda
Bhandari, Advs.
versus
STATE ..... Respondent

Through: Ms. Aashaa Tiwari, APP for
the State.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
GITA MITTAL, ACTING CHIEF JUSTICE
1. The following reference dated 6th October, 2016 has been

received from Shri Vishal Singh, Principal Magistrate, Juvenile
Justice Board-I, Sewa Kutir Complex, Kingsway Camp, Delhi.
Criminal Reference No. 2 of 2016 Page 1 of 40

Bar and Bench (www.barandbench.com)
Inasmuch as the issues which require to be considered are

succinctly set out therein, we extract the reference made by the ld.
Judge under Section 395(2) of the Code of Criminal Procedure,
1973 in extenso which reads as follows :
“(1) This Board seeks the kind attention of
Hon’ble High Court of Delhi towards the practice adopted
by Delhi Police and other connected Institutions in the
investigation of cases of rape and sexual assault on women
and children.
(2) Juvenile Justice Board conducts inquiry into

the offences committed by children in conflict with law in
accordance with the procedure laid down in Juvenile
Justice (Care and Protection of Children) Act, 2015.
While conducting inquiry into offence of sexual assault in
case FIR No.621/16, PS Rajouri Garden, U/s.
323/3545B/506/376(D) IPC, this Board noticed that FIR
was registered on 20/06/2016 on the basis of statement of
victim Ms. ‘N’. Thereafter, IO got the statement of victim
Ms. ‘N’ recorded U/s. 164 CrPC by Ld. MM on
23/06/2016. However, on the same day i.e. on 23/06/2016
IO recorded two more statements of victim Ms. ‘N’, either
before or after recording of her statement U/s. 164 CrPC
by Ld. MM. In addition, one memorandum in the form of
Counselling Report was also prepared by Counsellor Ms.
Divya Vats, belonging to Sahyog Charitable Trust funded
by DCW, Govt. of NCT, Delhi, on the basis of version of
victim girl Ms. ‘N’ related to the incident of sexual assault.
(3) Thus, the judicial file contains five versions of

victim girl Ms. ‘N’ related to the incident – the FIR, the
statement given U/s. 164 CrPC, the statement given to the
Counsellor, and two more statements recorded by the IO.
(4) In the cases of sexual assault on women and

children multiple recording of statements/versions of the

victim can adversely affect the veracity of prosecution

case due to obvious reasons. Besides, the recording of
statement/version of a victim by anyone other than the IO
and judicial officer has no sanction of law, barring
exceptional circumstances.
(5) There is no law which sanctions or requires

an Investigating Officer to get the statement or version of
a victim of sexual offence recorded through an NGO or a
private Counsellor. Since it has become a prevalent
practice of Delhi Police to get the statement or version of
a victim of sexual offence recorded by a private
Counsellor working with an NGO and then file the same
as a part of Challan/Final Investigation Report U/s. 173
Cr.P.C., its legality needs authoritative pronouncement by
Hon’ble High Court.
Thus, the question of law arising in all such cases is

hereby referred for the decision of Hon’ble High Court for
guidance.
Yours faithfully
(VISHAL SINGH)
Dated: 06/10/2016 Principal
Magistrate,
Juvenile Justice Board-I
Sewa Kutir Complex,
Kingsway Camp, Delhi.
Below is the description of other similar cases

pending before JJB-I in which the Investigating Officer got
the statement or version of the victim of sexual offence
recorded by a private Counsellor, in addition to recording
the statement himself and also through a Judicial Officer
U/s. 164 Cr.P.C.:-

a) FIR No.159/16, PS Roop Nagar, U/s.

354/376/34 IPC & Section 6 & 10 POCSO
Act.
b) FIR No.310/16, PS Khyala, U/s. 376/342 IPC
& Section 6 of POCSO Act.
c) FIR No.634/16, PS Ranholla, U/s.
376/342/506/120-B IPC & Section 4 of
POCSO Act.”
2. It appears that a practice which is being followed at the pre-

trial stages in Delhi in cases under the Protection of Children from
Sexual Offences Act, 2012 (‘POCSO Act’ or ‘the Act’ hereafter).
This may be severely impacting the outcome of trials therein. We
are required to consider the permissibility, legality and validity of
this practice. The two broad issues raised by this practice which
are required to be considered can be enumerated thus :
Q. No. 1: What is the legality of recording a statement or
version of the incident enumerated by a victim of
sexual offence by an NGO or a private counsellor and
filing of such statement or counselling report along
with a chargesheet before the trial court under
Section 173 of the Cr.P.C.?
Q. No. 2: What is the permissibility and legality of recording of

multiple statements/versions of a victim of sexual
assault, both women and children, by an investigating
officer/judicial officer?
Q. No. 1 - answered
Statutory scheme in India
3. The principal laws relevant for examination of the reference

in the present case would be the Protection of Children from

Sexual Offences Act, 2012 (‘POCSO Act’ hereafter) and the

Protection of Children from Sexual Offences Rules, 2012
(‘POCSO Rules’ hereafter) framed thereunder as well as the
Juvenile Justice (Care and Protection of Children) Act, 2015 (‘J.J.
Act’ hereafter).
4. For expediency, let us set down the relevant provisions of
the POCSO Act thus :
“Chapter VI
PROCEDURES FOR RECORDING
STATEMENT OF THE CHILD
24. Recording of statement of a child.- (1) The statement

of the child shall be recorded at the residence of the child
or at a place where he usually resides or at the place of his
choice and as far as practicable by a woman police officer
not below the rank of sub-inspector.
(2) The police officer while recording the statement of
the child shall not be in uniform.
(3) The police officer making the investigation, shall,
while examining the child, ensure that at no point of time
the child come in the contact in any way with the accused.
(4) No child shall be detained in the police station in the
night for any reason.
(5) The police officer shall ensure that the identity of the
child is protected from the public media, unless otherwise
directed by the Special Court in the interest of the child.
25. Recording of statement of a child by Magistrate.-

(1) If the statement of the child is being recorded under
section 164 of the Code of Criminal Procedure, 1973
(herein referred to as the Code), the Magistrate recording
such statement shall, notwithstanding anything contained
therein, record the statement as spoken by the child:

Provided that the provisions contained in the first

proviso to sub-section (1) of section 164 of the Code shall,
so far it permits the presence of the advocate of the
accused shall not apply in this case.
(2) The Magistrate shall provide to the child and his
parents or his representative, a copy of the document
specified under section 207 of the Code, upon the final
report being filed by the police under section 173 of that
Code.”
5. Having regard to the scope of the reference, it is critical to

analyze the statutory scheme in order to determine the following :
(i) Whether a “Counsellor’ is envisaged in law and what is the
role of the counsellor?
(ii) Whether or not the statements mandate counselling report?
(iii) What is the legal significance of such counselling
reports/notes prepared by the counsellor?
(iv) What is the manner in which the statement of a child victim
of sexual offences needs to be recorded under the Acts?
6. The above extracted provisions of POCSO Act amply
establish that the law contemplates recording of the statement of a
child victim only by a police officer under Section 24 of the Act,
and/or the Magistrate under Section 25 of the Act and not that by
any third party such as a counsellor. The law has also clearly
delineated specifically even the gender, attire, manner and the
place at which such statement would be recorded.
7. A close scrutiny of the legislation would show that the law
does not anywhere envisage recording of a statement of child

victim by a counsellor or a report of any kind from a counsellor

about his/her interactions with the child.
8. We find that Section 25 of the legislation has carefully set
down the manner in which the statement of a child victim being
recorded under Section 164 of the Code of Criminal Procedure,
1973 would be recorded by the Magistrate. Section 25 excludes
the requirement under the first proviso or sub-section (1) of Section
164 of the Code so far as it permits the presence of the advocates
of the accused. This exclusion in fact emphasizes the importance
attached by the legislature to oust any kind of third party
intervention in police investigations involving children.
9. It is also essential to consider the mandate of Section 26 of
the POCSO Act which reads as follows :
“26. Additional provisions regarding statement to be

recorded.- (1) The Magistrate or the police officer, as the
case may be, shall record the statement as spoken by the child
in die presence of the parents of the child or any other person
in whom the child has trust or confidence.
(2) Wherever necessary, the Magistrate or the police officer,
as the case may be, may take the assistance of a translator or
an interpreter, having such qualifications, experience and on
payment of such fees as may be prescribed, while recording
the statement of the child.
(3) The Magistrate or the police officer, as the case may be,
may, in the case of a child having a mental or physical
disability, seek the assistance of a special educator or any
person familiar with the manner of communication of the
child or an expert in that field, having such qualifications,
experience and on payment of such fees as may be prescribed,
to record the statement of the child.

(4) Wherever possible, the Magistrate or the police officer, as

the case may be, shall ensure that the statement of the child is
also recorded by audio-video electronic means.”
10. It is noteworthy that Section 26(1) stipulates that a child’s

statement would be recorded only by the police officer or the
Magistrate in the presence of their “parents or any other person” in
whom the child has trust and confidence. This clearly underlines
that the legislation does not contemplate recording of a statement
by any person other than the authorities specified strictly in the
statute.
11. It is trite that where law prescribes, the manner in which an
act has to be performed, it has to be performed in that manner or
not at all. This principle emerged from the case of Taylor v. Taylor
reported as (1875) 1 Ch.D 426 (Chancery Division) and has been
followed in Nazir Ahmed v. Emperor AIR 1936 PC
253; Ballabhadas Agarwala v. J.C. Chakravarty, AIR 1960 SC
576; State of Uttar Pradesh v. Singhara Singh & Ors., AIR 1964
SC 358; Gujarat Electricity Board v. Girdharlal Motilal & Ors.,
AIR 1969 SC 267; Ramachandra Keshav Adke v. Govind Joti
Chavare & Ors., Air 1975 SC 915; Sulochna Uppal v. Surinder
Sheel Bhakri, 1990 (3) Delhi Lawyer 325; Harnam Singh & Ors.
v. Bhagwan Singh & Ors., ILR (1991) 2 Del 625. Any exercise of
power, especially which impacts valuable rights of persons, can be
effected only after strict compliance with statutory provisions.

12. It is also necessary to note that the expression “any other

person whom the child has trust or confidence” cannot include a
counsellor or an NGO. Even though it could be held that the
expression includes a counsellor or an NGO, the only role
permitted to them is their presence at the time the statement was
being recorded and nothing more.
13. Vide Section 26(2), the POCSO Act specifically provides
that the magistrate (under Section 25) or the police officer (under
Section 24) shall record the statement. The Act enables the
magistrate or the police officer to take the assistance of a
“translator” or an “interpreter”. While Section 26(3) enables them,
in the case of a child having a mental or physical disability, to seek
the “assistance” of a “special educator” or “any person familiar
with the manner of communication of the child” or an “expert in
that field”.
The role permissible to these experts is that of rendering
assistance to the magistrate or the police officer wherever
necessary.
14. While Section 26(4) of the POCSO Act mandates that
“wherever possible”, the child’s statement is also recorded by
audio, video, electronic means”. Unfortunately, the statute has
failed to prescribe the procedure for recording/storing such
evidence including the manner in which the recording is to be
preserved and any provisions attaching confidentiality thereto.
15. It is important to note that Sections 26(1) and 26(2) only
enable presence or facilitation of the parents or any other person

while a statement is being recorded by either the Magistrate or a

police officer. No power is conferred on such persons named
therein to record a statement.
16. It is significant to note that Section 26(3) only enables the
Magistrate or the police officer to take assistance of the special
educator or the persons named therein. It does not in any manner
empower an NGO or a counsellor to record the statement.
17. The scheme of the legislation would show that after
prescribing the procedure and powers of the Special Courts and
recording of evidence in Chapter VII of the enactment, the
legislature has in Chapter IX incorporated “miscellaneous
provisions”. Section 39 thereto deserves to be extracted and reads
thus :
“Chapter IX
MISCELLANEOUS
39. Guidelines for child to take assistance of experts, etc.-
Subject to such rules as may be made in this behalf, the
State Government shall prepare guidelines for use of non-
governmental organisations, professionals and experts or
persons having knowledge of psychology, social work,
physical health, mental health and child development to be
associated with the pre-trial and trial stage to assist the
child.”
18. The provisions of Section 39 of the Act enables a State

Government to prepare guidelines which would be subject to rules
made in this behalf for use of “non-governmental organizations,
professionals and experts or persons having knowledge of

psychology, social work, physical health, mental health and child

development” only for the purposes of being “associated” with the
pre-trial and trial stages to “assist the child”.
19. It is specially important to note that Section 39 does not
envisage any assistance to be given by any person to the police
conducting the investigation or the Magistrate recording the
statement. The section contemplates only “guidelines for the child
to take assistance”.
20. The role of the persons detailed in Section 39 read with
Section 26 of the POCSO Act is limited to their presence during
recording of the statement of a child victim to ensure that the child
victim is comfortable and strengthened while recording the
incident to the police.
21. Mr. Dayan Krishnan, ld. Senior Counsel and amicus curiae
has also drawn our attention to paras 35 and 36 of the United
Kingdom’s Guidelines on prosecuting cases of children’s sexual
abuse issued by the Director of Public Prosecution, which elucidate
even the instances as to when a video recording would not be
appropriate, say for instance, when the abuse of the victim has
been filmed. These guidelines give practical guidance on how to
visually record the statement, even to the extent of the angle of the
camera which should be used.
Multiplicity of terms for counsellors/personnel interacting with the
child
22. Before proceeding in this matter, it is necessary to

understand as to who is a ‘counsellor’. We are unable to find any

legislative definition for this expression either in the POCSO Act

or under the Juvenile Justice (Care and Protection of Children) Act,
2015 or under the Rules framed under either of the enactments.
23. The counsellor may be covered under “professional and
experts or the persons having knowledge of psychology, social
work, physical health, mental health and child development” as
elaborated in Section 39 which enables the State Government to
prepare guidelines.
24. Though not used anywhere in the Act, we find that the
legislature has adverted to “counselling” in two places in the Rules
of 2012. Rule 4 makes provisions for care and protection of the
children and the role of the Special Juvenile Police Unit or the
local police. Clause (e) of sub-rule 2 makes a reference to
counselling and reads as follows :
“4. Care and Protection –
xxx xxx xxx
(2) Where an SJPU or the local police, as the case may be,
receives information in accordance with the provisions
contained under sub-section (1) of section 19 of the Act in
respect of an offence that has been committed or attempted
or is likely to be committed, the authority concerned shall,
where applicable, -
xxx xxx xxx
(e) inform the child and his parent or guardian or other

person in whom the child has trust and confidence of the
availability of support services including counselling, and
assist them in contacting the persons who are responsible
for providing these services and relief;

xxx xxx xxx”
25. We find a reference to counselling also in the provisions

relating to provision of emergency medical care contained in
Rule 5 to a child against whom an offence has been committed
who is in need of urgent medical care and protection under POCSO
Act. Clause (v) of sub-rule (4) of Rule 5 reads as follows :
“Emergency medical care –
xxx xxx xxx
(4) The registered medial practitioner rendering
emergency medical care shall attend to the needs of the
child, including –
xxx xxx xxx
(v) wherever necessary, a referral or consultation for
mental or psychological health or other counselling should
be made.”
26. In exercise of the power conferred by the statute under

Section 45 of the POCSO Act, the Central Government has
notified the Protection of Children from Sexual Offences Rules,
2012. In the definition clause contained in Rule 2, the legislature
has defined the expression “expert” (Rule 2(c)); “special
educator” (Rule 2(d)); “person familiar with manner of
communication” (Rule 2(e)). The Rules have given recognition to
yet another category of persons and assigned the nomenclature of
“support persons” which has been defined in sub-rule (f).
27. Given the importance of the issued under consideration, we
may extract the provisions of Rule 2(c),(d),(e) and (f) which read
thus :

“Definitions.-
xxx xxx xxx
(c) “Expert” means a person trained in mental health,
medicine, child development or other related discipline,
who may be required to facilitate communication with a
child whose ability to communicate has been affected by
trauma, disability or any other vulnerability.
(d) “Special educator” means a person trained in

communication with children with special needs in a way
that addresses the child’s individual differences and needs,
which include challenges with learning and
communication, emotional and behavioural disorders,
physical disabilities, and developmental disorders;
(e) “Person familiar with the manner of communication of

the child” means a parent or family member of a child or a
member of his shared household or any person in whom
the child reposes trust and confidence, who is familiar with
that child’s unique manner of communication, and whose
presence may be required for or be conducive to more
effective communication with the child;
(f) “Support person” means a person assigned by a Child

Welfare Committee, in accordance with sub-rule (8) of
rule 4, to render assistance to the child through the
process of investigation and trial, or any other person
assisting the child in the pre-trial or trial process in
respect of an offence under the Act;”
28. Neither the POCSO Act nor the J.J. Act defines
“counsellors” anywhere. Even the enactments do not use the term
counsellors.
29. As is evident from above, although the term “counsellor” is
not defined or mentioned in these Rules, the role of a counsellor
can fit into any of the above definitions – counsellors can be

persons trained in child development and used to effectively

communicate with the child; they can be persons familiar with the
child’s communication (for instance, if the child has had prior
contact with the police); and they can also fulfill the role of
empowering the child by explaining the legal processes involved.
In fact, this multiplicity of roles and the lack of a specific
definition has created ambiguity on the role of the counsellor
during the pre-trial investigation phase and has contributed to the
present practice of counsellors recording the statement of the child
and preparing a report, (often with their observations), that forms
part of the chargesheet.
30. There is therefore, complete lack of clarity as to which
category the counsellors will fall. If clarified, they could come
under Rule 2(c) which defines an “expert” or under Section 2(f) as
a “support person”. Though the reference stands made to
“counselling”, the contours thereof have not got any statutory
clarity.
Absence of any qualifications described for counsellors
31. We find that the POCSO Act or the Rules framed thereunder
contain no prescriptions for qualifications of counsellors unlike for
interpreters and translators. Rule 3(1) enjoins upon the District
Child Protection Unit (DCPU) to maintain a register with the
names, addresses and other contact details of interpreters,
translators and special educators for the Act which are to be made
available to the police/Special Juvenile Police Unit (SJPU) or the
special court as and when required.

Pertinently no such register is required to be maintained for

counsellors.
32. Even though Rule 3(1) is concerned only with “interpreters,
translators and special educators”, Rule 3(2) states that
qualifications and experience of “interpreters, translators, special
educators and experts” engaged for the purposes of Section 19(4),
Section 26(3) & (4) and Section 38 shall be provided. Rule 3(4)
provides that “interpreters and translators engaged under sub-rule
(1) should have functional familiarity with language spoken by the
child as well as the official language of the state”.
33. We may also advert to the requirements of Section 38 of the
POCSO Act which enables the court to take the assistance of an
interpreter or an expert while recording evidence of the child which
reads thus :
“38. Assistance of an interpreter or expert while recording

evidence of child.- (1) Wherever necessary, the Court may
take the assistance of a translator or interpreter having such
qualifications, experience and on payment of such fees as may
be prescribed, while recording the evidence of the child.
(2) If a child has a mental or physical disability, the Special
Court may take the assistance of a special educator or any
person familiar with the manner of communication of the
child or an expert in that field, having such qualifications,
experience and on payment of such fees as may be prescribed
to record the evidence of the child.”
34. Rule 3(5) requires that the “sign language interpreters,

Special educators and experts entered in the register under sub-
rule (1) should have relevant qualifications in sign language or

special education, or in the case of an expert, in the relevant

discipline, from a recognized University or an institution
recognized by the Rehabilitation Council of India”. However, Rule
3(1) does not refer to experts.
35. Rule 3(9) further adds an expert or other person familiar
with the manner of communication with the child to the list of
persons who can be involved in proceedings under Section 38.
36. The statutory scheme however, provides no clarity as to
whether the POCSO Act recommends any qualifications for
counsellors in so far as it remains indeterminate as to whether they
could fall in the category of “experts” mentioned in Rules (3)&(5).
POCSO Model Guidelines of September, 2013

has placed before this court, the POCSO Model Guidelines which
have been suggested by the Ministry of Woman and Child
Development under Section 39 of the POCSO Act. As noted
above, the law confers jurisdiction on the State Government to
frame guidelines under Section 39 which have to comport to the
requirements of the Rules framed by the Central Government
under Section 45 of the enactment. At best, these guidelines
therefore, are the suggestions to the State Government to follow.
These model guidelines are also unclear so far as the source of
qualifications of counsellors is concerned.
38. The guidelines inter alia contain information on interview of
the child, role of medical and health professionals, psychologists

and mental health experts, social workers and support persons as

well as the child development experts. However, there are several
areas where there is incoherence in the structure and substance as
well as interplay with the provisions of POCSO Act and POCSO
Rules, 2012.
39. Framing of guidelines have been suggested by the Central
Government in September, 2013 based whereon the State
Government are expected to frame more “extensive and specific
guidelines as per their needs”. While seven States/Union
Territories are stated to have formulated/accepted the guidelines
for various stakeholders, there is no such acceptance or formulation
thereof by the Delhi Government.
40. In Chapter 5, the Model guidelines answer the question of
‘Who can be appointed as a Counsellor’ and state that the
Integrated Child Protection Scheme [“ICPS”] “envisages the
development of a cadre of counsellors to provide professional
counselling services” under the Scheme.
41. Para 2.2 then lists the following organizations by whom
counselling may be provided under the ICPS Scheme (and not the
POCSO Act):
 “CHILDLINE Service
 Counsellors appointed by the District Child protection
Society (DCPS), who will report to the Legal-cum-Probation
Officer and will be responsible for providing counselling
support to all children and families coming in contact with
the DCPS.
 NGOs and other voluntary sector organizations” [Emphasis
Supplied]

42. Para 2.3 of the Chapter discusses the criteria for the
engagement of a counsellor and states thus
“in order to enable the engagement of counsellors from
outside the ICPS, including senior counsellors for the more
aggravated cases, the DCPU in each district shall maintain
a list of persons who may be appointed as counsellors to
assist the child. These could be mental health professional
employed by Government or private hospitals and
institutions, as well as NGOs and private practitioners
outside the ICPS mechanism, chosen on the basis of
objective criteria.”
43. It then provides an “indicative” criteria for qualification of

such a counsellor, being a graduate degree, preferably in
Sociology/Psychology (Child Psychology)/ Social Work in
addition to at least 2-3 years work experience in counselling
children in need of care and protection and training on handling of
cases of sexual abuse. [Ref.: Chapter 5, “Psychologists and
Mental Health Experts” in the Model guidelines, pages 36-37]
44. Before us, the respondents have not been able to explain or
indicate the process being adopted to appoint counsellors, their
qualifications or the manner in which their progress of counselling
is being monitored by the State. Even though there is not any
formal system of appointing counsellors, we have not been
informed as to whether their work is being monitored in any
manner.

45. We may note the extensive research undertaken by Mr.

Dayan Krishnan, ld. Senior Counsel and amicus curiae and Mr.
Trideep Pais, Advocate and amicus curiae who after examination
of the provisions from all over the world have placed before us the
code formulated by the State of Iowa in the Unites States of
America known as the Iowa Code.
46. § 915.20 of the Iowa Code is concerned with the presence of
victim counsellors. It falls within Chapter 915 – which is
concerned with victim rights.
47. In § 915.20 of the Iowa Code, a victim counsellor is defined
as “a person who is engaged in a crime victim center, is certified
as a counsellor by the crime victim center, and is under the control
of a direct services supervisor of a crime victim center, whose
primary purpose is the rendering of advice, counselling, and
assistance to the victims of crime. To qualify as a “victim
counsellor” under this section, the person must also have
completed at least twenty hours of training provided by the center
in which the person is engaged, by the Iowa organization of victim
assistance, by the Iowa coalition against sexual assault, or by the
Iowa coalition against domestic violence, which shall include but
not be limited to, the dynamics of victimization, substantive laws
relating to violent crime, sexual assault, and domestic violence,
crisis intervention techniques, communication skills, working with
diverse populations, an overview of the state criminal justice
system, information regarding pertinent hospital procedures, and

information regarding state and community resources for victims

of crime”.
48. These Iowa guidelines also refer to the victim counsellor
privilege and the manner in which the same can be waived.
49. Guidance could be taken from the stipulations in this Code
and the experience of working of this Code while framing
appropriate guidelines.
50. Inasmuch as extensive submissions have been made by Mr.
Dayan Krishnan, ld. Senior Counsel and amicus curiae on the lack
of clarity in the Model POCSO Guidelines suggested by the
Central Government as well as contradictions with the provisions
of the statute and Rules, it would be appropriate to discuss these
briefly hereafter.
51. The model guidelines, framed by the Central Government in
the year 2013 have not been accepted or notified by the
Government of NCT of Delhi.
52. While formulating general binding principles, the Model
Guidelines conclude that the children’s right to be treated with
dignity and compassion means that “efforts should also be made to
reduce the number of professionals interviewing the child.”
However, while laying down Guidelines on interviewing a child,
page 12 of the Model Guidelines conclude that since “interviewing
of children is a specialized skill…, if possible, it should be
conducted by a trained professional.”
53. The problem with these seemingly contradictory guidelines
further gets exacerbated on considering that the Guidelines propose

that at the interview stage, there should be an assessment that goes

beyond the medical history of the child and seeks information
directly related to the alleged sexual abuse, such as the details and
frequency of the assault, including the time and place, the
description of clothing worn etc. Such interviews are not
therapeutic but forensic.
54. According to the Model Guidelines need to be conducted by
a “variety” of “trained professionals”, which would include the
police or investigative agencies. The Model Guidelines thus seem
to suggest that even counsellors and other trained professionals can
conduct these interviews, although without disclosing the statutory
basis of such a conclusion. (Ref. Chapter 3 on Guidelines on
Interviewing a Child : Forensic Interview Protocol at page 12 of
the Model Guidelines).
55. The model guidelines are further unclear on the role of the
counsellor and how it is distinct from other support persons and
experts.
56. While discussing the role of “psychologists and mental
health experts”, the Model Guidelines identify Rules 4(2)(e) and
5(4)(v) as the relevant rules that deal with counselling. Para 2.1
identifies the “Role of Counsellors” as :
 To understand the child’s physical and emotional state
 To resolve trauma and foster healing and growth.
 To hear the child’s version of the circumstances leading to
the concern.
 To respond appropriately to the child when in crisis.

 To provide counselling, support, the group-based programs

to children referred to them.
 To improve and enhance the child’s overall personal and
social development, and his/her health and wellbeing.
 To facilitate the reintegration of the child into his/her
family/community.
(Ref. : Chapter 5, “Psychologists and Mental Health Experts in

the Model Guidelines, Pages 36-38)
57. It is thus clear that the duty of the counsellor is to work in

the best interests of the child and clearly to assist the child, and not
assist in the investigation.
58. We find however, while discussing the role of Child
Development Experts, the Model Guidelines concludes that while
interviewing a child to gather evidence, “a child development
expert may therefore have to be involved in the management of the
process”. This is premised on the idea that interviewing children in
the scope of an investigation requires professional and specialized
training and knowledge of child development, the psychological
impact of sexual abuse on children, and an understanding of police
investigative procedures. Police officers using adult interrogation
techniques are thus viewed as compromising the ability of the
evidence collected from the child. The Model Guidelines in
Chapter 7, “Child Development Experts” in the Model Guidelines,
pages 61-63, consider child development experts under the
definition of “Expert” in Rule 2(c) and seems to conflate them with

experts appointed under Rule 3 to help children in the need of

translation, interpretation, or children with disabilities.
59. We find that the Model Guidelines further recognize that a
social worker or probation officer or NGO or “any other person
found fit by the CWC” may assist the Child Welfare Committee
(CWC) or conduct an inquiry on whether the child needs to be
taken out of the custody of their family or shared household in
accordance with Rules 4(3)-(5) of the POCSO Rules.
60. The Model Guidelines further elaborate on the role played
by a support person as an “intermediary between the authorities
and the child” under Rules 4(2)(e), 4(7), 4(9) and 4(10). The fact
that a counsellor can also be appointed as a support person is clear
from the following list of Support Persons identified in the
Guidelines:
“3.1 The DCPU and the CWC shall maintain a list of
persons/NGOs who may be appointed as support person to
assist the child. This court include the following:
 Persons working in the field of child rights/child
protection.
 NGO or other organization working in the field of child
rights/ child protection, including Child line and its support
organizations
 Officials of a children’s home or shelter home
 Persons employed the in DCPU, including:
(i) Legal-cum-Probation officer
(ii) Social worker
(iii) Outreach worker
(iv) Counsellor”
61. Thus, a counsellor’s role at this stage requires them to

interact with the police and other authorities, as per Chapter 6,

‘Social Workers and Support Persons” in the Model Guidelines

(pages 47-48, 50-51).
62. Finally, according the Model guidelines, an NGO worker is
included in the term “person of trust and confidence” and their
presence can be requested at the time of making a statement to the
police or Magistrate [Section 26(1)], at the time of medical
examination [Section 27(3)], in Court [Section 33(4) and 33(7)],
and to act as a support person for assistance the child during the
pre-trial and trial procedure and for proceedings under the Act
[Rule 4(7) and proviso] (Ref.: Chapter 6, ‘Social Workers and
Support Persons” in the Model guidelines, page 58). This
interpretation does not have any statutory basis, inasmuch as an
NGO member is unlikely to be someone in whom the child already
has trust and confidence.
63. Thus care would require to be taken to ensure that the
guidelines comply with the requirements of the statute.
Confidentiality of any statement made by a child to a
counsellor/expert/support person/any person familiar with the
manner of communication of the child
64. Though making of a statement to anybody other than the

police officer or the magistrate is not envisaged by law, however,
statutory recognition stands given to experts and other persons, as
noted above which includes experts, special educators, persons
familiar with the manner of communications of the child victim
and support persons.

65. A very important aspect of the matter which requires to be

considered is the permissibility of public disclosure of a statement
made by a child to any person or authority referred to in the
POCSO Act or the Rules of 2012. So far as any “interpreter,
translator, special educator or expert” appointed under the Act or
the Rules are concerned, Rule 3(10) explicitly says that they “shall
be bound by the Rules of confidentiality as prescribed under
Section 127 read with Section 126 of the Indian Evidence Act,
1872”.
66. So why the reference of Sections 126 and 127 of the Indian
Evidence Act is made in Rule 3(10)? It would be useful to extract
the provisions of these statutory provisions which read thus :
“126. Professional communications.—No barrister,
attorney, pleader or vakil shall at any time be permitted,
unless with his client’s express consent, to disclose any
communication made to him in the course and for the
purpose of his employment as such barrister, pleader,
attorney or vakil, by or on behalf of his client, or to state
the contents or condition of any document with which he
has become acquainted in the course and for the purpose
of his professional employment, or to disclose any advice
given by him to his client in the course and for the purpose
of such employment:
Provided that nothing in this section shall protect from
disclosure—
(1) Any such communication made in furtherance of any
illegal purpose; illegal purpose;"
(2) Any fact observed by any barrister, pleader, attorney
or vakil, in the course of his employment as such, showing
that any crime or fraud has been committed since the
commencement of his employment. It is immaterial

whether the attention of such barrister, pleader, attorney

or vakil was or was not directed to such fact by or on
behalf of his client.
Explanation.—The obligation stated in this section
continues after the employment has ceased.
Illustrations
(a) A, a client, says to B, an attorney—“I have committed
forgery, and I wish you to defend me”. As the defence of a
man known to be guilty is not a criminal purpose, this
communication is protected from disclosure.
(b) A, a client, says to B, an attorney—“I wish to obtain
possession of property by the use of a forged deed on
which I request you to sue”. This communication, being
made in furtherance of a criminal purpose, is not protected
from disclosure.
(c) A, being charged with embezzlement, retains B, an
attorney, to defend him. In the course of the proceedings, B
observes that an entry has been made in A’s account-book,
charging A with the sum said to have been embezzled,
which entry was not in the book at the commencement of
his employment. This being a fact observed by B in the
course of his employment, showing that a fraud has been
committed since the commencement of the proceedings, it
is not protected from disclosure.
has extensively placed the privilege attached to the statement
which includes the express consent of the client (the victim of
sexual assault in the present reference), and cases where the
communication is made in furtherance of an illegal purpose. In
this context, it might crucial to examine whether the child victim
should be permitted to waive the privilege of the counsellor.

68. A similar obligation has been placed on the “support

person” identified under the Rules, who is bound to maintain
confidentiality of “all information pertaining to the child to which
he has access” under Rule 4 (8) of the POCSO Rule which reads
thus :
“4. Care and Protection –
xxx xxx xxx
(8) The support person shall at all times maintain the
confidentiality of all information pertaining to the child to
which he has access. He shall keep the child and his
parent or guardian or other person in whom the child has
trust and confidence, informed as to the proceedings of the
case, including available assistance, judicial procedures,
and potential outcomes. He shall also inform the child of
the role he may play in the judicial process and ensure that
any concerns that the child may have, regarding his safety
in relation to the accused and the manner in which he
would like to provide his testimony, are conveyed to the
relevant authorities.”
has explained that Section 126 of the Indian Evidence Act, unlike
Section 124 of the Indian Evidence Act, provides for waiver of the
privilege by the victim/client. Considering the provision such a
waiver by the victim under Section 126 of the Indian Evidence Act,
it should be examined if such waiver would be in the interest of the
child victim and if such a waiver is being made voluntarily and
knowingly. It is further submitted that the reasons for accepting
such a waiver by the child victim should be recorded in writing in
an order which is amenable to challenge under Section 482 of the
Cr.P.C.

70. The POCSO Act and the Rules 2012 do not contemplate any
report to be made by a counsellor or any observations of the
counsellor which were made part of the police file or could be
placed on record of the trial court.
71. There is even more stringent requirement in Section 99 of
the Juvenile Justice (Care and Protection of Children) Act, 2015
which reads as follows :
“99. Reports to be treated as confidential.

1. All reports related to the child and considered by the
Committee or the Board shall be treated as confidential:
Provided that the Committee or the Board, as the
case may be, may, if it so thinks fit, communicate the
substance thereof to another Committee or Board or to the
child or to the child’s parent or guardian, and may give
such Committee or the Board or the child or parent or
guardian, an opportunity of producing evidence as may be
relevant to the matter stated in the report.
2. Notwithstanding anything contained in this Act, the
victim shall not be denied access to their case record,
orders and relevant papers.”
72. Clearly, the reports relating to a child which were placed for
consideration before the Child Welfare Committee or with regard
to the child in need of care and protection or before the Juvenile
Justice Board with regard to a child in conflict with law are
required to be treated as confidential. The substance thereof only
can be communicated in terms of the proviso to Section 99(1). The
confidentiality thus attached to the report by any person or expert
is absolute. So far as the victim is concerned, other than the police

or the magistrate, no person or authority is authorized to take any

forensic interviews. For this reason as well, it would be the
grossest illegality for any of the person, experts and authorities
under the POCSO Act or the JJ Act to make reports which could
have any bearing on the case.
73. Further, it is reiterated that the question of the scope and
contents of such a Report, including any observations made by the
counsellor, does not arise inasmuch as the Act does not even
mandate the existence of such a report, which can be part of the
police file.
has also placed the confidentiality provisions framed by the State
of Iowa in §915.20A (1) (a) (d) of the Iowa Code talks about
“Victim Counsellor Privilege” and §915.20A(2) clarifies that a
victim counsellor shall not be examined or required to give
evidence in any civil or criminal proceeding as to any confidential
communication made by a victim to the counsellor unless there is
an express waiver by the victim or a court orders the disclosure.
§915.20A of the Iowa Code then details the situations under which
this privilege does not apply (for instance in the matters of proof
concerning the physical appearance of the victim at the time of
injury) and the cases and procedure under which the court can
compel disclosure (for instance after requiring the counsellor
claiming privilege or the victim or both to disclose the information
in the judge’s chambers to decide whether it merits disclosure).

75. The aforesaid provisions of Acts make it explicitly clear that

counselling report/notes of the counsellor (as well as any person or
expert recognized under the POCSO Act and Rules of 2012 and the
JJ Act) are confidential in nature and the same cannot be made a
part of the chargesheet.
76. The counsellor at best has the duty of facilitating the victim
and disclosure of any kind made by the victim to the counsellor is
confidential in nature. The notes prepared during the counselling
by the counsellor as well as his report are completely confidential
and cannot be made part of the chargesheet or the record of the trial
court in a case under POCSO Act, 2012.
The first question is answered as above.
Q. No. 2- answered
77. The second part of the reference is concerned with the issue
of multiple statements of a victim being recorded by the police
during investigation and the problems caused thereby.
78. The dynamics of child sexual abuse are the same
internationally. First and foremost, it is essential to understand the
manner in which the children recount. Children do not disclose in
one go but do so in piece meal. To accord the same treatment to a
child as one would to an adult would result in grave injustice.
79. It needs no elaboration that the children would be reluctant
and unlikely to disclose an entire adverse experience in proper
detail in their first statement to the police, let alone the necessary

details. The fear for themselves or their family; an apprehension

that they would be disbelieved; inability to identify themselves as
victims; pressure or threats from the perpetrator; relationship to the
perpetrator; fear of embarrassment, shame or self-blame; fear of
stigmatization; lack of trust with the investigating agency amongst
other would be some of the reasons which would act as barriers to
a child making a disclosure of a complete incident in a single
meeting.
80. There is great variation in how disclosure is defined and
studied. Disclosure is rarely a spontaneous event and it is more
likely to occur:-
 slowly over time as part of a process. For some it is a process that
reoccurs and is never finished. Children and young people disclose
abuse in many different ways
 ranging from direct verbal statements to more subtle indirect
methods. Some children will tell purposefully yet others will do so
indirectly or only after being encouraged by others to talk Non-
verbal disclosures are more common among young children and
 can come about through letter writing, role playing or drawing
Bodily or physical signs of abuse can include stomach aches,
encopresis
, enuresis, adverse reactions to yoghurt or milk, or soreness in the
genitals Emotional signs of abuse include fear, anxiety, sadness,
acting out
 without immediate cause, mood swings and reluctance to visit the
perpetrator Behavioural signs can include sexualised playing with
dolls, sexual
 experimentation, excessive masturbation, or drawing sexual acts.
However, such behaviours need to be considered in the context of
individual, family and wider societal dynamics in which they occur
Various models or stages of disclosure have been proposed
including

 staged, social exchange and social cognitive models. The models

agree that disclosure is an interactive and dynamic process that is
influenced by the way children conceptualise and make decisions
about whom to tell and the reactions they might receive.1
81. Children may disclose spontaneously (disclosure as an

event) or indirectly and slowly (disclosure as a process). The
child's type of disclosure may be influenced by their developmental
features, such as their age at the onset of abuse and/or their age at
time of disclosure. For instance, younger children are more likely
to spontaneously disclose than older children (Lippert, Cross, &
Jones, 2009; London et al., 2005; Shackel, 2009). Understanding
disclosure of abuse as a process may help adults to be patient and
allow the child or young person to speak in their own way and their
own time (Sorensen & Snow, 1991). It also helps adults maintain
an awareness of any changes in behaviour or emotions that may
indicate abuse is occurring or increasing. If you have suspicions
that abuse is occurring, even if you are unsure, it is better to report
your suspicions than to do nothing.2
82. Some children and young people may disclose when asked
or after participating in an intervention or education program
(Shackel, 2009). Others may initially deny that they have been
abused if asked directly, or say that they forget, only to disclose
later. Children and young people may disclose, only to retract what
1
Child Sexual Abuse and Disclosure- NSW Government – Family and Community Service -
Dr Catherine Esposito, Practice Research Office of the Senior Practitioner Programs and
Service Design – Chapter 2: Definitions, typologies and models of disclosure.
2
Responding to children and young people’s disclosures of abuse CFCA Practitioner
Resource— March 2015
Australian Government- Australian Institute of Family Studies

they have said later; however, this is relatively uncommon. The

child or young person might say he or she made a mistake, lied, or
that the abuse actually happened to another child. In cases with a
higher likelihood of actual abuse, recantations are low (4-9%;
London et al., 2005). However, the stress of disclosing and
receiving potentially negative responses from caregivers may lead
some children to recant in an attempt to alleviate the stress
(Hershkowitz, Lanes, & Lamb, 2007).3
83. A recent qualitative study of disclosure among 60 young
men and women in the United Kingdom observed eight forms of
disclosure: direct, indirect verbal, partial verbal, accidental
direct/verbal, prompted, non-verbal/behavioural, retracted and
assisted. Partial disclosures were characterised by minimisation of
the abuse, disclosing abuse of another person or disclosing other
forms of abuse such as physical assault. Prompted disclosures were
made in response to a direct inquiry about abuse while assisted
disclosures involved a young person disclosing to another young
person with the help of a friend. The authors note that children use
a variety of techniques to disclose including direct or ambiguous
verbal statements and non-verbal disclosure in the form of writing
letters, reenacting abuse type situations or drawing pictures for
adults. Physical or bodily signs of child sexual abuse can include
stomach aches, encopresis, enuresis, adverse reactions to yoghurt
or milk (due to resemblance to semen), or soreness in the genitals
3
Responding to children and young people’s disclosures of abuse CFCA Practitioner
Resource— March 2015
Australian Government- Australian Institute of Family Studies

(Jensen, 2005). Emotional signs can encompass fear, anxiety, and

sadness, acting out without immediate cause, mood swings and
reluctance to visit the perpetrator. Behavioural signs include
sexualised playing with dolls, sexual experimentation, excessive
masturbation, or drawing sexual acts (Finkelhor, 1994; Jensen,
2005).4
84. Where children are concerned, the disclosure normally
would tend to be a process, rather than a single incident or episode.
It would take multiple interviews for an investigator or an
interviewer to even establish trust in the mind of the child.
Unfortunately, we have been unable to evolve any guidelines with
regard to investigation and prosecution of cases of child sexual
abuse which are the subject matter of POCSO Act, 2012, though
the Central Government has suggested the following in the POCSO
Model Guidelines :
“The dynamics of child sexual abuse are such that often,

children rarely disclose sexual abuse immediately after the
event. Moreover, disclosure tends to be a process rather
than a single episode and is often initiated following a
physical complaint or a change in behaviour. In such a
situation, when the child finally discloses abuse, and a
report is filed under the POCSO Act, 2012 more
information will have to be gathered so that the child‟s
statement may be recorded.
Information so obtained will become part of the evidence.
4
Child Sexual Abuse and Disclosure- NSW Government – Family and Community Service -
Dr Catherine Esposito, Practice Research Office of the Senior Practitioner Programs and
Service Design – Chapter 2: Definitions, typologies and models of disclosure. (Allnock &
Miller, 2013).

However, given the experience that the child has gone

through, he is likely to be mentally traumatised and
possibly physically affected by the abuse. Very often, law
enforcement officers interview children with adult
interrogation techniques and without an understanding of
child language or child development. This compromises
the quality of evidence gathered from the child, and
consequently, the quality of the investigation and trial that
are based on this evidence.
The interviewing of such a child to gather evidence thus
demands an understanding of a range of topics, such as
the process of disclosure and child-centred
developmentally-sensitive interviewing methods, including
language and concept formation. A child development
expert may therefore have to be involved in the
management of this process. The need for a professional
with specialized training is identified because interviewing
young children in the scope of an investigation is a skill
that requires knowledge of child development, an
understanding of the psychological impact sexual abuse
has on children, and an understanding of police
investigative procedures.
Such a person must have knowledge of the dynamics and
the consequences of child sexual abuse, an ability to
establish rapport with children and adolescents, and a
capacity to maintain objectivity in the assessment process.
In the case of a child who was disabled/ physically
handicapped prior to the abuse, the expert would also
need to have specialised knowledge of working with
children with that particular type of disability, e.g. visual
impairment, etc.”
has also placed the “Guidelines on Prosecuting Cases of Child
Sexual Abuse” issued by the Director of Public Prosecutions,

Crown Prosecution Services, in October, 2013 which contains the

following guidelines :
“The statement taking stage
35. Particular care should be given when deciding how

to take the victim's statement. A video recorded
interview (and subsequent use of the live link in
court) is often the most appropriate means but may
not always be so. For example, if the abuse of the
victim has been filmed and the victim does not want
to be videoed as a consequence.
xxx xxx xxx
38. A victim of child sexual abuse may not give their
best and fullest account during their first recorded
(ABE) interview or statement. This may be for a
variety of reasons: they could have been threatened;
they might be fearful for themselves or their family;
the offending may have been reported by others and
they may be reluctant to cooperate at that stage.
They might not have identified themselves as a
victim or they could be fearful that the police will
not believe their allegations. They may initially
distrust the police and could well use the interview
to test the credibility of the police.
39. The account given may take a number of interviews,
with the child or young person giving their account
piecemeal, sometimes saving the 'worst' till last,
having satisfied themselves that they can trust the
person to whom they are giving their account.”
86. There is no reason why the same practice cannot be followed

in India. This leaves the question of how to interpret the multiple
statements made by the witness/victim.

87. In para 40 of the above guidelines, the Crown Prosecution

Services (CPS), has taken the following view :
“40. Carefully thought out patient intervention by the
police and other agencies can ultimately disrupt and break
the link to the offender(s). A seemingly contradictory
initial account is therefore not a reason in itself to
disbelieve subsequent accounts given by the victim and
these contradictory accounts should instead be seen as at
least potentially symptomatic of the abuse.”
88. The law allows the investigating agencies to record multiple

statements of the victims. There is no prohibition on recording
multiple statements by the police.
89. We may at this stage also advert to the provisions of Section
164 (5)(A) of the Cr.P.C. which mandates that the statement of a
victim under Section 354, 354A-D, 376(1) and (2) as well as
Section 376A-E or Section 509 of the IPC shall be recorded as
soon as the commission of the offence is brought to the notice of
the police.
90. A seemingly contradictory initial account is not a reason in
itself to disbelieve the subsequent accounts by the victims. The
multiple statements placed by the investigating agency should be
carefully scrutinized by the Trial Courts in order to ensure that
complete justice is done.
The second question is accordingly answered.

Result
Q.No. 1: What is the legality of recording a statement or
version of the incident enumerated by a victim of sexual offence
by an NGO or a private counsellor and filing of such statement
or counselling report along with a chargesheet before the trial
court under Section 173 of the Cr.P.C.?
(i) A statement under the POCSO Act can be made only to a

police officer or a magistrate, and;
(ii) Provisions of the POCSO Act or the JJ Act do not
contemplate any report to be made by a counsellor. It further
makes it explicitly clear that counselling report/notes of the
counsellor (as well as any person or expert recognized under the
POCSO Act and Rules of 2012 and the JJ Act) are confidential in
nature and the same cannot be made a part of the chargesheet or
otherwise on the trial court record.
Q.No. 2: What is the permissibility and legality of recording of

multiple statements/versions of a victim of sexual assault, both
women and children, by an investigating officer/judicial officer?
(i) The law allows the investigating agencies to record multiple

statements of the victims. There is no prohibition on recording
multiple statements by the police.
(ii) A seemingly contradictory initial account is not a reason in
itself to disbelieve the subsequent accounts by the victims. The
multiple statements placed by the investigating agency should be
carefully scrutinized by the Trial Courts in order to ensure that
complete justice is done.
91. The reference stands answered in above terms. The TCR’s

shall be returned forthwith.
92. Let a copy of this order be circulated to all judicial officers
in Delhi.

93. We may note the extremely well researched and deeply

analysed written notes by Ms. Aakashi Lodha, Ms. Manvi Priya
and Ms. Vrinda Bhandari, Advocates, which have been placed by
Mr. Dayan Krishanan, Senior Counsel and Mr. Trideep Pais,
Advocate, who appear as amici curiae in this matter.
ACTING CHIEF JUSTICE
AUGUST 04, 2018/aj ANU MALHOTRA, J

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% Reserved on : 27th July, 2018

COURT ON ITS OWN MOTION ..... Petitioner

STATE ..... Respondent

GITA MITTAL, ACTING CHIEF JUSTICE

1. The following reference dated 6th October, 2016 has been

Criminal Reference No. 2 of 2016 Page 1 of 40

Inasmuch as the issues which require to be considered are

(2) Juvenile Justice Board conducts inquiry into

(3) Thus, the judicial file contains five versions of

(4) In the cases of sexual assault on women and

Criminal Reference No. 2 of 2016 Page 2 of 40

victim can adversely affect the veracity of prosecution

(5) There is no law which sanctions or requires

Thus, the question of law arising in all such cases is

Below is the description of other similar cases

Criminal Reference No. 2 of 2016 Page 3 of 40

a) FIR No.159/16, PS Roop Nagar, U/s.

2. It appears that a practice which is being followed at the pre-

Q. No. 2: What is the permissibility and legality of recording of

Statutory scheme in India

3. The principal laws relevant for examination of the reference

Criminal Reference No. 2 of 2016 Page 4 of 40

Sexual Offences Act, 2012 (‘POCSO Act’ hereafter) and the

24. Recording of statement of a child.- (1) The statement

25. Recording of statement of a child by Magistrate.-

Criminal Reference No. 2 of 2016 Page 5 of 40

Provided that the provisions contained in the first

5. Having regard to the scope of the reference, it is critical to

Criminal Reference No. 2 of 2016 Page 6 of 40

victim by a counsellor or a report of any kind from a counsellor

“26. Additional provisions regarding statement to be

Criminal Reference No. 2 of 2016 Page 7 of 40

(4) Wherever possible, the Magistrate or the police officer, as

10. It is noteworthy that Section 26(1) stipulates that a child’s

Criminal Reference No. 2 of 2016 Page 8 of 40

12. It is also necessary to note that the expression “any other

Criminal Reference No. 2 of 2016 Page 9 of 40

while a statement is being recorded by either the Magistrate or a

18. The provisions of Section 39 of the Act enables a State

Criminal Reference No. 2 of 2016 Page 10 of 40

psychology, social work, physical health, mental health and child

22. Before proceeding in this matter, it is necessary to

Criminal Reference No. 2 of 2016 Page 11 of 40

legislative definition for this expression either in the POCSO Act

xxx xxx xxx

(e) inform the child and his parent or guardian or other

Criminal Reference No. 2 of 2016 Page 12 of 40

xxx xxx xxx”

25. We find a reference to counselling also in the provisions

26. In exercise of the power conferred by the statute under

Criminal Reference No. 2 of 2016 Page 13 of 40

(d) “Special educator” means a person trained in

(e) “Person familiar with the manner of communication of

(f) “Support person” means a person assigned by a Child

Criminal Reference No. 2 of 2016 Page 14 of 40

persons trained in child development and used to effectively

Criminal Reference No. 2 of 2016 Page 15 of 40

Pertinently no such register is required to be maintained for

“38. Assistance of an interpreter or expert while recording

34. Rule 3(5) requires that the “sign language interpreters,

Criminal Reference No. 2 of 2016 Page 16 of 40

special education, or in the case of an expert, in the relevant